People v. Quidachay

• Court: Superior Court of Guam
• Decided: February 3, 2014
• Docket: CF0465-12
• Status: Unknown

Opinion

IN THE SUPERIOR COURT OF GUAM

7~' > l ~?!f 2 THE PEOPLE OF GUAM, ) CRIMINAL CASENb. CRU65-12 ) 3 ) 4 v. ) DECISION ~,ORDER ON ) DEFENDANT'§MOTION TO 5 THOMAS MICHAEL QUIDACHAY, ) DISMISS THE INDICTMENT ) AND MOTION IN UMINE 6 Defendant. ) 7 )

9 INTRODUCTION

lO This matter came before the Honorable Maria T. Cenzon at a Motion Hearing and Pre-

11 Trial Conference on Thomas Michael Quidachay' s ("Defendant") joint Motion to Dismiss the 12 Indictment and Motion In Limine ("Motions") filed on September 30, 2013. Defendant was 13 present and represented by Attorney Anthony Camacho and Assistant Attorney General 14 Gabrielle Rossi represented the People of Guam (the "People"). After hearing oral argument on 15

16 the motions, the Court took both matters under advisement.

17 This Court, having considered the Motions, the People's Opposition, and the applicable 18 statutes and case law, now issues the following written Decision and Order GRANTING the 19 Motion In Limine and DENYING the Motion to Dismiss the Indictment. 20 BACKGROUND 21

22 1. Procedural History. 23 Defendant was indicted on six (6) counts of Use of One's Child in Obscene Acts (as a 1st 24 Degree Felony) under 9 GCA § 28.52 on August 3, 2012. Indictment (Aug. 3, 2012). Defendant 25 was initially charged in CF0451-12 by Magistrate's Complaint on July 27, 2012. The earlier 26

27 case was sua sponte dismissed without prejudice by the Honorable Judge Elizabeth Barrett

28 Anderson, presumably pursuant to 8 GCA § 45.80(b). See Order of Dismissal, CF0451-12 (Aug. 8, 2012). Dismissals under 8 GCA § 45.80(b) " ... shall not preclude the government from 2 instituting a subsequent prosecution for the same offense" and Defendant was subsequently 3 indicted in this case. Indictment (Aug. 3, 2012). Defendant filed the instant Motions in one 4 pleading on September 30, 2012 and the People filed a Response to each Motion separately on 5

6 October 10, 2013. The Court heard oral arguments from both Parties on October 29, 2013 and

7 now issues this Decision and Order. 8 2. Defendant's Motion In Limine. 9 Defendant moves the Court to exclude from trial any evidence pertaining to 1) 10

II Defendant's earlier case of People v. Quidachay, CM1001-09 (Superior Ct. of Guam); 2) an

12 alleged break-in or burglary of the Chalan Pago-Ordot Mayor's Office in October 2009; and 3) 13 any mechanical deficiencies of a black computer tower (seized by the Guam Police Department 14 on September 2, 2010) and which arose after September 30, 2009. Defendant's Motion at 4. 15 The People, in their Opposition, stated they do not intend to offer any evidence of CM1001-09 in 16

17 this case, but oppose Defendant's Motion to exclude evidence of the break-in and tampering with

18 the computer. (Opp'n at 3). 19 3. Defendant's Motion to Dismiss the Indictment 20 Defendant moves to dismiss t.he Indictment in its entirety on the grounds of insufficient 21 evidence and for a lack of competent evidence presented to the grand jury that Defendant 22

23 committed the crimes he is charged with. The People state that dismissal of the indictment by

24 this Court would have no grounding in Guam law and is an improper remedy prior to trial. As 25 the record before the Court includes evidence cited by the Defendant in support of his claim of 26 lack of competent evidence (see Motion, Exhibits A and B), the Court will also examine if the 27

28 evidentiary bases for Defendant's Indictment are supported on its face, and legally sufficient,

-2- mindful that "when a duly constituted grand jury returns an indictment valid on its face, no 2 independent inquiry may be made to determine the kind of evidence considered by the grand jury 3 in making its decision." Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 4 (1956). 5

6 LAW AND ANALYSIS 7 1. Defendant's Motion In limine. 8 a. Motion to Exclude Evidence of CMlOOl-09. 9 The People, in their Opposition, stated they do not intend to offer any evidence of lO

11 CM1001-09 in this case (Opp'n at 3). Although "the filing of a notice of non-opposition to a

12 motion ... does not require a court to automatically grant the motion and is not dispositive of the 13 motion itself' (Petition of Quitugua v. Flores, 2004 Guam 19

17 to present any intent to introduce evidence of CM1001-09 by the Pre-Trial Conference in this

18 matter. 19 b. Motion to Exclude Evidence of an Alleged Break-in or Burglary of the 20 Chalan Pago-Ordot Mayor's Office in October 2009 and the Subsequent 21

22 Damage to a Black Computer Tower.

23 In their Opposition, the People state they plan to introduce evidence that shortly after the

24 Defendant was fired from his job at the Chalan Pago Community Center where Defendant was 25 employed during the time of the alleged crimes, "there was a break-in to the community center" 26 which resulted in a computer no longer working; this computer was later found to contain 27

28 evidence of Defendant's alleged crimes. Opp'n at 2. The People did not orally argue this

-3- motion at hearing and rested on their submitted brief. In their Opposition, the People state that 2 these alleged facts are "clear evidence of consciousness of guilt on the part of the Defendant as 3 well as Defendant's attempt to cover up his crime." Opp'n at 2. At oral argument, Defendant 4 represented that no one had been charged in this alleged break-in. 5

6 As presented, the proffered evidence lacks relevance under Guam Rules of Evidence

7 402(a) (relevant evidence "has any tendency to make a fact more or less probable than it would 8 be without the evidence") as there is no linkage between the alleged break-in and the Defendant 9 except that it occurred at his former place of employment shortly after he was fired. Assuming 10

11 that all of the above facts are true and relevant, this evidence still lacks probative value under

12 Guam Rules of Evidence 403 (see Bowden v. McKenna, 600 F.2d 282, 284-285 (1st Cir.

13 1979)("Weighing probative value against unfair prejudice under F.R.Evid. 403 means probative 14 value with respect to a material fact if the evidence is believed, not the degree the court fmds it 15 believable")), as the People have not presented any causal connections between the break-in, the 16

17 broken computer, and the crime Defendant is charged with. See also US v. Willford, 764 F.2d

18 1493, 1499 (11th Cir. 1985)("Evidence, not part of the crime charged but pertaining to the chain 19 of events explaining the context, motive and set-up of the crime, is properly admitted if linked in 20 time and circumstances with t..l:te charged crime, or forms an integral and natural part of an 21 account of the crime, or is necessary to complete the story of the crime for the jury."). In the 22

23 absence of evidence which links these alleged facts together, admission would result in unfair

24 prejudice under Rule 403 and it would confuse the issues and mislead the jury. Absent 25 additional offers of proof prior to or at trial, this Court will exclude this evidence in limine per 26 Defendant's motion. 27

28 II 2. ~lotion to Dismiss Indictment

2 With the exception of 8 GCA § 50.14(b), no provision exist in the Guam Code to dismiss 3 an indictment nor for a court to review a grand jury's fmding that "there is reasonable cause to 4 believe that an indictable offense has been committed and that the defendant committed it." 8 5

6 GCA § 50.54(b). Even § 50.14(b) is strictly curtailed to challenges "based on objection to the

7 array or on the lack of legal qualification of an individual juror, if not previously determined 8 upon challenge." Even the provision by which Defendant seeks to challenge the competency of 9 the evidence received by the grand jury operates with the caveat that "the fact that evidence 10

II which is incompetent was received by the grand jury does not render the indictment void where

12 sufficient competent evidence to support the indictment was received by the grand jury." 8 GCA 13 § 50.42. The Supreme Court of the United States has found that an allowance for trial courts to 14 review the findings of a grand jury "would run counter to the whole history of the grand jury 15 institution, in which laymen conduct their inquiries unfettered by technical rules." Costello v. 16

17 US, 350 US 359, 364 (1956). In that vein, the Costello Court at 362-363 cited to a case from

18 1852 for authority: "No case has been cited, nor have we been able to fmd any, furnishing an 19 authority for looking into and revising the judgment of the grand jury upon the evidence, for the 20 purpose of determining whether or not the finding was founded upon sufficient proof 21 ... "(quoting US v. Reed, 27 Fed.Cas. pages 727, 738, No. 16,134). Defendant's Motion to 22

23 Dismiss the Indictment has almost no recognition under either the common law or statutes.

24 This Court may still narrowly consider Defendant's Motion to Dismiss using the 25 evidence in support of his Motion by solely looking at the legal validity of the indictment on its 26 face under a narrow Costello exception: "An indictment returned by a legally constituted and 27

28 unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough

-5- to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." 2 Costello at 409 (emphasis added). This authority is also affirmed by the Guam Supreme Court 3 and Guam statutes in People v. San Nicolas and 8 GCA § 65.15(b): "[f]ailure of an indictment 4 sufficiently to state an offense is a fundamental defect ... and it can be raised at any time." 5

6 (quoting US v. Spinner, 180 F.3d 514, 516 (3rd Cir. 1999)) and "[Title 8] section 65.15(b) gives

7 [the trial court] the authority to raise the defective indictment issue sua sponte.". People v. San 8 Nicolas, 2013 Guam 211[ 14. 9 That analysis begins with a recitation of the generic charge (six counts) against 10

II Defendant:

12 On or about the lOth day of September, 2009, in Guam, THOMAS MICHAEL QUIDACHAY did commit the offense of Use of One's Child in Obscene Acts, in 13 that, while having custody or control of a child under the age of sixteen ( 16) 14 years, that is [initials and date of birth of said child], Defendant did knowingly permit said child to be used in or be a party to material or performance that is 15 obscene, in violation of 9 GCA § 28.52. 16 Indictment (Aug. 3, 2013). 17 The language of the Indictment tracks the applicable statute: 18 § 28.52. Use of One's Child in Obscene Acts. 19

20 A person is guilty of a felony of the first degree if while having custody or control of any child under the age of sixteen (16) years, he shall knowingly permit that 21 child to be used in or be a party to any material or performance that is obscene. 22 Title 9 GCA § 28.52. 23 At the time of the alleged crimes, Defendant was employed in running an afterschool 24

25 program at the Chalan Pago Community Center in Guam (Motion, Exhibit A at 1) and therefore

26 had custody or control of elementary and middle school children identified as being between 9- 27 12 years old in the Indictment. The footage which was seized as evidence by the Guam Police 28 Department was date and time stamped on 9/10/09 and appeared to be video of the children

-6- viewing what was alleged to be two women engaged in sexual activity. Motion, Exhibit A at 3. 2 A Julie R. Posadas identified the voice of the individual taking the footage to be Defendant. !d. 3 "Material" includes motion picture under 9 GCA § 28.40(a) and "Performance" means "any 4 physical human activity ... " under 9 GCA § 28.40(c). The evidence presented to the grand jury 5

6 indicated that all of these essential elements were presented. See Motion, Exhibit B at 2, 9:34:24

7 AM. The representation of obscenity, as defined by 9 GCA § 28.40(e) was presented to the 8 grand jury by the sworn testimony of a police officer. Motion at 2 and Exhibit B at 2, 9:31 :39 9 AM. Defendant proffers that the footage, taken as a whole presents a scientific experiment. !d. lO

11 at 3. Such an affirmative defense is one for the fmder of fact at trial to weigh.

12 To summarize, it is clear that without weighing the competency of the evidence presented 13 to the grand jury, this Court finds that the Indictment, on its face, is valid and states an offense 14 under 9 GCA § 28.52. 15 CONCLUSION 16

17 For the reasons stated above, Defendant's Motion In Limine ts GRANTED and

18 Defendant's Motion to Dismiss the Indictment is DENIED. 19 The Court will issue a new Criminal Trial Scheduling Order setting a new date for the 20 previously vacated Jury Selection and Trial. 21

22 It is SO ORDERED this 3\ day of January, 2014.

25 Judge, Superior Court of Guam 26

-7-